[gojomo]

With a finalized class settlement, Google would have stopped fighting for fair-use rights, and entered into a moneymaking partnership with the Authors' Guild with a unique right – established by the expansive class including all authors not yet even identified – to scan and even market books, and be immune from further lawsuits from the class.

Anyone with shallower-pockets that then tried to do what Google did would likely have been sued by Authors' Guild – now strengthened by Google cash – or other members of the class. There was no precedent or requirement that others be offered the same deal as Google: if Authors' Guild liked their deal with Google (and why wouldn't they), they could tell others, sorry, we've already got a system in place, you're not part of it.

But further, why should other 'little guys' have had to fight a legal battle with Authors' Guild, or negotiate under threat of litigation by a de facto Authors' Guild-Google alliance, just to do something that (now, finally) is clearly authorized by fair-use?

The class settlement's Google-financed-and-managed system, for the benefit of the Authors' Guild class, would have started with an overwhelming and likely legally and economically insurmountable advantage in the scanning and marketing of older books. That gave rise to the centralization and privacy/censorship concerns of the ACLU, EFF, and American Libraries Association. They're smart and like old books, too – but perceived a risk that outweighed the benefit of "just scan 'em all quickly – under a Google/Authors' Guild monopoly".

[yohui]

Dragooning Google into the fight to defend fair-use may be a smart tactical move for the EFF, but that should not impinge on the objective question of whether the Google Books settlement was legal. The privacy and censorship concerns they raised seem orthogonal to the settlement itself, as the concerns would remain whether the settlement was accepted or (as was the case) rejected (e.g. Amazon removing Kindle books from users' libraries).

Why wouldn't the Authors' Guild be willing to offer others the same terms? How would it benefit them to depend on Google? The agreement would have granted a new sort of status to Google, but there is no reason that status would have to remain unique.

Regarding the anti-trust angle, the wiki article cites an MIT paper that concludes the settlement would not violate anti-trust and would in fact generate a consumer surplus. [1]

Forcing Google to fight for fair-use may have been a sound Machiavellian strategy for the EFF (as it resulted in today's ruling), but it's ironic then that the main reason why the settlement was rejected seems to be because it was not strong enough on copyright, as expressed by individual authors' concerns over loss of control, and freeing of orphan works.

[1]: http://www.criterioneconomics.com/Google%20and%20the%20Prope...